PHILADELPHIA (CN) — Vying to dismantle a class action that says American Airlines forced employees to work during break time, a lawyer for the airlines told the Third Circuit on Tuesday that the specifics of each worker will vary too greatly to satisfy commonality.
“How would you ever find out whether, when and how much every single class member worked without asking them,” Anton Metlitsky with the O’Melveny law firm said in arguments this afternoon before the Philadelphia-based appeals court.
Daniel Ferreras and Edwin Gonzalez — two clerks responsible for towing airplanes into and out of hangars, providing water and lavatory services, and loading and offloading baggage to and from airplanes — brought the 2016 overtime lawsuit in New Jersey.
Though they initially sought to represent thousands of clerks from airports across the country, Chief U.S. District Judge Jose Linares granted certification last year to three subclasses of employees who, like Ferreras and Gonzalez, worked at Newark Liberty International Airport. Linares noted that the plaintiffs had identified approximately 200 class members to date, with at least 40 members in each subclass.
U.S. Circuit Judge Kent Jordan, one of three members of Tuesday’s appellate panel, questioned the airline’s lawyer as to whether it would be satisfied with more narrow classes based on departments.
Metlitsky pushed back, saying that does not matter because there is still no record of the off-the-clock work.
Lee Shalov, representing the class, emphasized to the panel that it matters only whether the employee worked — not when or how long — to be considered a part of the class.
Jordan pressed Shalov on how a blanket statement that all the employees worked shows enough commonality to award damages to the entire class.
“How is the court supposed to find commonality if you don’t know whether or not a person worked more than 40 hours a week,” Jordan asked.
Shalov, with McLaughlin Stern law firm, agreed that any determination of how long a person worked would have to be done on an individual basis, but again stressed that the court should only look at the simple fact that the employees worked.
U.S. Circuit Judge Luis Felipe Restrepo asked Metlitsky on his rebuttal why it is not enough for the class to get damages, since there is no dispute that each of the plaintiffs in the class worked.
Metlitsky again noted that it was not the point if they worked, but when.
“Even on the question of whether they worked, they can’t tell you when,” said Metlitsky.
U.S. Circuit Judge Michael Chagares rounded out the panel.